The Second Injury Fund was not represented at oral argument, and its counsel indicated that she would proceed on papers. Notice sent to Michelle Truglia, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 3, 1999 Finding and Award of the Commissioner acting for the First District was heard August 25, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Leonard S. Paoletta and George A. Waldron.

OPINION

ROBIN L. WILSON, COMMISSIONER. The respondent State of Connecticut has petitioned for review from the December 3, 1999 Finding and Award of the Commissioner acting for the First District. The state contends on appeal that the trier erred by awarding the claimant enhanced workers’ compensation benefits under the “special hazard” provision of § 5-142(a). We agree with the appellant’s allegation of error, and reverse the trial commissioner’s decision.

The facts that the trier found in this case are not complex. The claimant was employed as a corrections officer at the Osborne Correctional Institution in Somers on August 11, 1996. During the course of his guard duties on that date, he encountered an inmate stepping out of the shower onto a tier. The inmate stumbled and grabbed hold of the claimant, who reciprocally seized the inmate and restrained him as he had been trained to do in assault situations. The claimant later testified that his reaction was an instinctive response to the inmate’s unexpected movement, and that, regardless of the circumstances, he would have reacted the same way in order to gain control of the situation. After the incident was over, the claimant decided that there was neither malice nor intent behind the prisoner’s act, and did not file a disciplinary report against him. Nevertheless, the claimant suffered multiple bilateral inguinal hernias while catching and restraining the inmate, and has since endured periods of total disability from work. His injury claim was accepted by the respondent, and he began receiving 75% of his wages as compensation pursuant to § 31-307 C.G.S.

Section 5-142(a), meanwhile, allows “any member of the Division of State Police within the Department of Public Safety or of any correctional institution . . . [who] sustains any injury (1) while . . . in the actual performance of such police duties or guard duties, or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty and (2) that is a direct result of the special hazards inherent in such duties” up to 260 weeks of incapacity at full salary, thereafter followed by compensation at fifty percent of his salary, as long as total disability continues. Realizing that he would benefit financially (at least for the first five years of his disability) if he qualified under § 5-142(a), the claimant also chose to pursue an award under this provision. The trial commissioner accepted his claim, reasoning that the claimant indeed sustained injuries while grabbing and restraining an inmate during the performance of his guard duties. The trier found that his injuries “were a direct result of the special hazards inherent in [his] guard duties as defined in . . . Section 5-142(a),” and awarded him full salary benefits. The state disagrees with that ruling, and has appealed it to this board.

Prior to 1991, an individual in the claimant’s position would have been eligible for benefits under § 5-142(a) as long as his injury was sustained “in the actual performance of . . . guard duties” or “while attending or restraining an inmate” of a correctional institution. Our lawmakers then added the requirement that a qualifying injury must be a “direct result of the special hazards inherent in such duties” via P.A. 91-339. Though they did not explicitly define the “special hazards” phrase in the statute, our legislators clearly intended to remedy a perceived loophole which had allowed a member of this class of state employees to collect full pay disability after any injury suffered during his work duties, even if the mishap bore no relationship to the heightened risks inherent in his job. Bouchard v. State of Connecticut/Department of Mental Health and Addiction, 4120 CRB-8-99-9 (July 28, 2000), citing Lucarelli v. State, 16 Conn. App. 65 (1988) (absence of terms “hazardous” or “special” in statute indicated legislative intent to omit them). By mending this loophole, the proponents of the amendment concomitantly displayed their intent to narrow the scope of state liability under the “full salary” statute.

To illustrate the effect of this legal revision, we note that our Appellate Court held that a correctional guard was entitled to full salary benefits following a 1982 back injury that he suffered when his chair collapsed as he attempted to sit down at his desk, even though being seated is not a danger specific to prison work. Lucarelli, supra. After the addition of the new statutory language, it became necessary to distinguish hazardous duties from routine ones. Thus, this board drew a line between the act of “restraining” an inmate, which is obviously risky due to the high possibility of physical confrontation, and the act of “attending” an inmate, which may not be exceptionally hazardous. Gray v. State of Connecticut/Fairfield Hills Hospital, 12 Conn. Workers’ Comp. Rev. Op. 279, 281, 1476 CRB-4-92-8 (June 7, 1994). We also noted in Bouchard, supra, that the history of P.A. 91-339 contrasts a back injury suffered by a state hospital worker while lifting a hostile or combative patient out of a chair from a similar injury suffered while lifting a normal patient. Id., citing 34 H. Proc., Pt. 24, 1991 Sess., pp. 9068-69, remarks of Rep. Joseph Adamo. “The conflation of this language and the circumstances of the ‘special hazards’ amendment suggest, as we held in Gray, that § 5-142(a) may not be invoked unless one of the unusually dangerous aspects of a covered employee’s job directly causes his injury.” Bouchard, supra.

In Bouchard, we considered a trial commissioner’s decision to award full salary benefits to a supervisor at Whiting Forensic Institute who had injured his right foot while playing volleyball in a game involving both staffers and inmates. Though the claimant’s participation in the game reasonably fell within the scope of his duty to attend inmates of the mental health facility, in general, volleyball is a recreational activity during which collisions and injuries are foreseeable. The claimant did not demonstrate that his actions during the volleyball match, or the more localized sequence of events during which he was injured, were the product of a peculiar job-related hazard that put him at greater risk than he would have experienced during a normal game of volleyball. “Not once did he even suggest that the conduct of a patient caused him to tumble to the floor, other than in the attenuated sense that he would not have been playing volleyball in the first place had two additional inmates not wanted to join the game. That is not enough to trigger § 5-142(a).” Id. Because the record contained insufficient evidence to support the trier’s holding, even taking into account his role as the finder of facts and evaluator of evidentiary credibility; see Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); we were obligated to reverse his decision.

After examining the evidentiary record of this case, we believe that a similar result is legally mandated here. There is no testimony in the record to support the conclusion that the claimant was “restraining” the inmate as per the interpretation of § 5-142(a) that we articulated in Gray, supra. The essence of this case is simple: an inmate slipped and attempted to break his fall by grabbing hold of the claimant. He was caught by the claimant, who reacted instinctively without ever perceiving that something untoward was happening. May 18, 1999 Transcript, p. 18. This caused the claimant to suffer multiple inguinal hernias. There is no assertion that this inmate was attempting to provoke an altercation or otherwise behaving belligerently, thus requiring the intervention of a prison guard. All agree that this occurrence was merely an accident that would not be worth mentioning had the claimant not suffered an injury.

In a prison environment, the “special hazard” that a guard incurs while attending and restraining inmates is that he will be forced to physically intervene in a dispute among inmates, or become the victim of attempted violence by one of the inmates. In such a situation, an action taken by the guard to subdue or control an inmate’s behavior is fairly described as “restraint,” and falls directly within the ambit of § 5-142(a). On the other hand, almost any employee in any business might be placed in the unexpected situation of having to break someone’s fall when the other person loses her balance. Though such an action could reasonably deemed to be within the scope of one’s job; see Roche v. Danbury Hospital, 3592 CRB-7-97-5 n.1 (July 13, 1998) (secretary in hospital acted in employer’s interests by catching elderly patient as he fell out of wheelchair); it would seem to take very special circumstances for this type of “restraint” to constitute a special hazard of employment. More pointedly, the record contains no proof that catching hold of people who slip is an especially hazardous aspect of a state prison guard’s job. Therefore, the trier’s decision lacks a vital subordinate factual element.

We understand the claimant’s argument that this constitutes “restraint” and a “special hazard” under § 5-142(a) because he would have acted the same way had the inmate exited the shower with some sort of weapon, and tried to attack him. See Transcript, p. 11, 14. However, such speculation could only prove distracting. As a legal matter, it is highly significant that (a) such an attack did not occur, and (b) the claimant did not mistakenly believe that he or anyone else was in danger at the time of this brief incident. Indeed, when he was injured, this claimant was no more involved in a highly hazardous situation than was the claimant in Bouchard, supra. We do not believe that it is material under § 5-142(a) to assume that the conduct of the claimant would have been the same had the situation around him been different. The statute addresses actual “special hazards,” not scenarios that are comparable to “special hazards” that might imaginably have occurred. To the extent that Gray, supra, might be read to suggest differently, we observe that no finding was made as to the nature of the patient’s conduct when he fell and had to be restrained. In our view, such a finding is necessary under § 5-142(a), and should be required in future cases of that type. Here, such a finding was made, and it requires that the claimant’s § 5-142(a) claim be dismissed.